Zondo has his work cut out tackling many issues
There is no shortage of pressing problems at the Constitutional Court and the judiciary in general for the new chief justice to deal with in the short time he has.
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17 March 2022
After weeks of radio silence, President Cyril Ramaphosa finally announced the appointment of Deputy Chief Justice Raymond Zondo as the new chief justice of South Africa. The announcement was met with some surprise but generally warmly welcomed.
Judges Matter joins those who were pleasantly surprised by Zondo’s appointment – he has the least number of years left on the bench – but we warmly welcome the years of experience and deep knowledge of the judiciary that he brings to the role. Based on his strength and experience, what could we look forward to in Zondo’s tenure?
In an earlier article, Judges Matter noted that one of the priorities of the new chief justice would be to fix the Judicial Service Commission (JSC) and restore its legitimacy in the public eye. Few people could be more suited for this role than Zondo. He has already proven that he is capable of doing so.
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After the first round of interviews to shortlist candidates for appointment as justices to the Constitutional Court in April 2021, Zondo had the unenviable task of chairing a JSC session in October that featured a court-ordered rerun of the process. The JSC had spectacularly botched the interviews and was sued by the Council for the Advancement of the South African Constitution to have them overturned. Zondo earned plaudits for the respectful and dignified manner in which he ran the October session, with commentators praising the gravitas he brought to it.
Zondo now again has the task of rescuing the JSC from a muddy patch – one in which he, ironically, was the victim of its free-for-all interview style. But this time the reforms would have to be searching and exhaustive as the JSC needs to fundamentally change the way it does things.
During the chief justice interviews in February, the JSC committed to a workshop to draw up clear criteria for judicial appointment. This commitment was repeated in a letter addressed to eight civil society organisations that had demanded that the JSC not proceed with interviews until the criteria were in place. According to the JSC’s April 2022 interview schedule, it has set aside an entire day where there will be a “discussion of the JSC mandate”.
As we have repeatedly said, this discussion cannot conclude without the JSC drawing up precise criteria for judicial appointment, rules of procedure and a code of conduct for commissioners. Zondo’s immediate task is to make sure that this is done. With only two years on the job, fixing the JSC will be his signature legacy project.
Delays and misconduct
Although Zondo has served as justice of the Constitutional Court since 2012, he readily admitted in his interview that all is not well at Constitution Hill: our apex court is taking far too long to deliver judgments. Zondo, like other candidates, noted that this is likely because of the 2013 constitutional amendment that expanded the court’s jurisdiction to deal with all appeals instead of only those dealing with constitutional issues.
All four candidates had a suite of ideas that could be implemented in the short, medium and long term. But the problems at the court cannot wait.
In a recent column in the Sunday Times, legal writer Franny Rabkin notes some major operational incidents with dire consequences, from the missing appeal of a person languishing in prison and the fiasco over the procurement judgment, which almost halted the government’s multibillion-rand procurement machinery, to two retractions of judgments that had already been sent out publicly. While there may be reasonable excuses for these, it is still unacceptable.
Zondo is the most senior justice both by the position he holds and his number of years on the apex court’s bench. He would have witnessed some of these errors, and it now falls on him to fix them. As Rabkin points out, Zondo will still be preoccupied with writing the state capture report in the first few weeks of his tenure, but he nevertheless needs to come up with immediate measures to arrest the decline. He has already asked the court registrar to investigate how some of these errors arose, but that’s not enough – the court needs a detailed plan.
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For the past several years, Zondo has chaired the judicial conduct committee, a subcommittee of the JSC that deals with misconduct complaints against judges. He has led this body with a relatively steady hand. Under his leadership, there have been encouraging signs of it processing complaints in a relatively short space of time, including the complaints against Zondo’s boss and predecessor, retired chief justice Mogoeng Mogoeng.
Zondo now needs to intensify some of the successful measures he previously implemented as its chairperson and initiate new ones. These include amending the law to streamline the complaints system, recruiting retired judges to handle judicial complaints, allocating dedicated staff, and boosting transparency by publishing the outcomes of major complaints plus the status of all complaints in the system.
All these measures will help in some way to protect the independence and integrity of the judiciary and ensure that judges themselves are subject to the same accountability they expect of everyone. Getting the conduct system working effectively will be yet another one of Zondo’s legacy projects.
State capture and Covid fallout
For the past four years, Zondo has been in the spotlight as the chairperson of the state capture commission. This has earned him the reputation as South Africa’s chief anti-corruption warrior, but it has also earned him – and the broader judiciary – some enemies. The EFF, the third-largest party in Parliament, opposes Zondo’s appointment based on his time at the commission, describing it as a “reward for treating Ramaphosa with kids gloves (sic)”. The party added that it was Zondo’s “spiteful, vindictive and dishonest” decision to refuse to recuse himself at ex-president Jacob Zuma’s request that led to the deadly unrest in July 2021.
These are strong words from a political party that litigates the most in South Africa’s courts. It’s not unreasonable to expect more of this kind of language as Zondo delivers further instalments of the state capture report and the report itself is taken on judicial review (as Gwede Mantashe has indicated he would do).
Zondo, unfortunately, will be unable to tame this kind of political fallout. But he should already have a plan in mind and should be pressed to make it clear to the public. This plan must also deal with the politicisation of the judiciary, which fellow chief justice candidate Judge Dunstan Mlambo identified as a significant threat to the judiciary.
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As Judges Matter said before, the judiciary was not left unscathed by the Covid-19 pandemic and the lockdowns in response. We are told of high case backlogs in some courts, especially in regard to criminal cases, which could not be dealt with during the five months of hard lockdown. It will take several years to deal with these backlogs – which we already know Zondo does not have.
In the time remaining, he can put in place the systems and plans that will sustain this work after his retirement. This is why it shows some strategic foresight for the president to nominate Justice Mandisa Maya to be Zondo’s deputy. She has already proven herself as a visionary leader who has a deft hand for dealing with complex problems.
Zondo has some formidable problems awaiting his tenure as the sixth chief justice of South Africa. But his track record shows that he could make a few dents in many of them. Judges Matter stands ready to lend a hand in fixing these problems. Still, we also promise to stay true to our mission of holding him and the judiciary accountable to the transformative promise of the constitution. We wish the new chief justice well.
Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a civil society project that monitors the appointment of judges, their discipline for misconduct, and the judicial governance system in South Africa. Follow the project on www.judgesmatter.co.za and Twitter on @WhyJudgesMatter.
